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Family Law

Index

Divorce

Divorce and other legal issues affecting families involve substantial legal rights. You should retain a law firm in which you can be confident that your case will be handled with the skill and sensitivity required to achieve the desired result.

Voicu & Nica P.C. is a full service matrimonial and family law firm. We are skilled, experienced and knowledgeable of all phases of family law practice, whether it be negotiating and drafting a pre-nuptial agreement or a separation agreement, litigating a contested divorce or custody dispute, or analyzing complex financial issues in connection with the distribution of marital assets.

High Net Worth Divorce

Individuals going through divorce who have a high net worth often present unique sets of challenges. Some of the issues which may arise in these high net worth cases include the distribution of

  • Professional licenses or degrees held (which offer increased earning potential)
  • Stock options, IRAs, 401(k) accounts and pensions
  • Trusts
  • Real estate / real property
  • Family businesses
  • Professional practices
  • Closely held businesses or complicated business transactions

Clients benefit from our comprehensive understanding of these complex financial issues and our proven success in high stakes litigation and personal engagement in our client’s success.

Annulment

An annulment invalidates a marriage that the parties were not legally capable of entering. In New York there are several scenarios where a marriage can be annulled. Specifically, a marriage can be annulled:

  • If either spouse is incurably incapable of having sexual intercourse;
  • If in a marriage between persons under the age of 18 years, the spouse under 18 wants
    an annulment;
  • If, after marriage, either partner becomes incurably insane for five years or more;
    (The sane spouse may be required to support the insane spouse for life.)
  • If either spouse consents to marry as a result of the force or duress of the other spouse;
    or if either spouse cannot understand the nature, effect and consequences of marriage; or
  • If a spouse’s consent to enter the marriage was obtained by fraud. The fraud must have been
    such that it would have deceived an ordinarily prudent person and was material to obtaining
    the other party’s consent. The fraud must be such as to go to the essence of the marriage
    contract. The fraud must be such as to go to the essence of the marriage contract.

A common fraud ground involves a misrepresentation concerning the desire to have children. For example, prior to the marriage, one party, the husband, represents to his future wife that he wants to have children, knowing that it is important to the wife to have children. Then, after the marriage, the husband, despite his pre-marriage representation, refuses to have children. Since the wife would not have entered the marriage but for the husband’s misrepresentation, the marriage was procured by fraud and may be annulled.

A party seeking an annulment can seek all of the remedies available to a party in an action for divorce, including maintenance, equitable distribution, child and child support.

Equitable Distribution

All marital property may be equitably distributed. Martial property is broadly defined as all property acquired by either or both parties during the marriage, but before execution of a New York separation agreement or the commencement of a matrimonial action. Marital property can be distributed even if it is held solely in the name of one of the parties.

It is important to note that in terms of splitting martial assets, equitable does not mean equal. Assets do not have to be distributed 50/50.

Statutory Provisions providing for equitable distribution of marital property
In New York, a court will consider the following statutory factors when equitably distributing the marital property:

a) the income and property of each party at the time of marriage and at the time of
commencement of action;
b) the duration of marriage and the age and health of both parties;
c) the need of custodial parent to occupy or own marital residence or to use or own
household effects;
d) loss of inheritance rights and pension rights upon dissolution as of date of dissolution;
e) any award of maintenance;
f) any equitable claim to or interest in, or direct or indirect contribution to the acquisition of
the marital property by the party not having title, including joint efforts or expenditures and
contributions and services a spouse, parent, wage earner and homemaker and to the career
or career potential of the other party;
g) the liquid or non-liquid character of all marital property;
h) the probable future financial circumstances of each party;
i) the impossibility or difficulty of evaluating any component asset or interest in a business,
corporation or profession; and the desirability of retaining the asset, or interest in the
business, corporation or profession free from any claim or interference by the other party;
j) the tax consequences to each party;
k) he wasteful dissipation of assets by either spouse;
l) any transfer or encumbrance made in contemplation of a matrimonial action without fair
consideration; and
m) any other factor which the Court shall expressly find to be just and proper.

Examples of marital property can be equitably distributed
The types of property that may be equitably distributed are endless. Common examples include: the marital home, vacation homes, automobiles, household furnishings, bank accounts, stock portfolios, pensions and retirement plans, interests in businesses and professional degrees.

In New York, a party’s “enhanced earning capacity” which includes the value of any degree, license or certification obtained during the marriage can be distributed

Separate Property (Property that is not subject to equitable distribution)
Separate property is not equitably distributed. Separate property is broadly defined as:

a) property acquired before marriage or by bequest, devise, descent or gift from a party
other than the spouse;
b) compensation for personal injuries;
c) property acquired in exchange for or the increase in value of separate property;
d) any property described as separate property in a written agreement between the parties

Maintenance Alimony

In New York, alimony is called maintenance. Maintenance can be awarded for an indefinitely or for a lifetime or a specific period of time. In considering an award of maintenance, the Court must consider the standard of living of the parties that was established during marriage, the circumstances of the case and of the parties, whether the party who is getting the award lacks sufficient property and income to provide for his/her reasonable needs and whether the party paying the maintenance has sufficient property and income to provide for the other’s reasonable needs.

Maintenance may be deductible to the party paying maintenance and taxable to the recipient.
The following statutory factors are considered by the court in calculating the duration and amount of maintenance:

a) the income and property of the respective parties including marital property distributed;
b) the duration of the marriage and the age and health of both parties;
c) the present and future earning capacity of both parties;
d) the present and future earning capacity of both parties;
e) the ability of the party seeking maintenance to become self supporting and, if applicable,
the period of time and training necessary therefore;
f) the presence of children of the marriage in the respective homes of the parties;
g) the tax consequences to each party;
h) contributions and services of the party seeking maintenance as a spouse, parent,
wage earner and homemaker, and to the career or career potential of the other party;
i) the wasteful dissipation of marital property by either spouse;
j) any transfer or encumbrance made in contemplation of a matrimonial action without
fair consideration; and
k) any other factor which the Court shall expressly find to be just and proper.

Child Custody

The issue of child custody is perhaps the most emotionally charged aspect of divorce.
Under New York Law, the best interest of the children is the standard to determine who should have primary physical custody of the children.

There are two forms of custody, legal and physical.

Legal custody refers to the decision making with regard to health, education, and welfare of the children. Legal custody can be granted to one or both parents.

Physical custody refers to where the child lives. One parent may have sole physical custody, and the other may have visitation rights. It is possible for both parents to have physical custody, which means the children will split their time and reside with each parent for an agreement period of time.

The non-custodial parent will have visitation or parenting time with the children.

Child Support

Child support in New York is calculated pursuant to the Child Support Standards Act (“CSSA”) .

To simplify, CSSA provides that unless the court finds that the non-custodial parent’s pro rata share of the “basic child support obligation” to be unjust or inappropriate after considering the ten enumerated factors, it must order the non-custodial parent to pay his or her pro rata share of the “basic child support obligation”.

The “basic child support obligation” is calculated by multiplying the “combined parental income” by the appropriate “child support percentage. Income” is defined as “gross income as was or should have been reported on the most recent federal income tax return” less deductions for, inter alia, social security and New York City and Yonkers income taxes.

The “child support percentage” is fixed at:

a) 17% of the combined parental income for one child;
b) 25% of the combined parental income for two children;
c) 29% of the combined parental income for three children;
d) 31% of the combined parental income for four children; and
e) no less than 35% of the combined parental income for five or more children.

Where the combined parental income exceeds $80,000 per year, the court has discretion to depart from the child support percentages as to those portions of income in excess of $80,000.00.

Same Sex Divorce

Marital unhappiness and discord is not limited to heterosexual couples. Same sex marriages are no more immune from marital discontent, infidelity, or the other problems that doom marriages than their heterosexual counterparts.

Same-sex marriage in the U.S. state of New York became legal on July 24, 2011, under the Marriage Equality Act.  In order to dissolve the marriage, whether performed in New York or elsewhere, New York courts will grant same sex litigants a divorce as long as New York courts have jurisdiction over the marriage and/or marital assets.

Same sex divorces are no different than heterosexual divorces. The issues of equitable distribution, spousal maintenance, and child support and access (parenting time or custody and visitation), permeate a divorce case without regard to sexual orientation; same sex couples suffer the same misery and costs as divorcing heterosexual litigants.

Pre-nuptial

A pre-nuptial agreement could prevent litigation in the event the marriage ends in divorce. On the other hand, a difficult negotiation may end the relationship before a marriage takes place.

Pre-nuptial agreements are no longer an exclusive financial risk management tool for Hollywood couples. Having seen what can happen when a high-profile relationship fails, increasing numbers of less famous couples are known to be opting for written agreements to protect the financial assets each partner brings to the relationship.

Some of the advantages of such an agreement are: to protect your separate property; support your estate plan; it defines what property is considered marital property or community property; it reduces conflicts and saves money if you divorce; it clarifies special agreements between you, and it establish procedures and ground rules for deciding future matters.

But, of course the whole idea of a pre-nup is far from romantic. What follows of pre-nuptial agreement considerations:

Reasons for a Pre-nuptial Agreement

  • A premarital agreement can protect the inheritance rights of children and grandchildren from
  • a previous marriage.
  • If you have your own business or professional practice, a premarital agreement can protect
    that interest so that the business or practice is not divided and subject to the control or
    involvement of your former spouse upon divorce.
  • If one spouse has significantly more debt than the other, a premarital agreement can protect
    the debt-free spouse from having to assume the obligations of the other.
  • If you plan to give up a lucrative career after the marriage, a premarital agreement can ensure
    that you will be compensated for that sacrifice if the marriage does not last.
  • A premarital agreement can address more than the financial aspects of marriage, and can
    cover any of the details of decision-making and responsibility sharing to which the parties
    agree in advance.
  • A premarital agreement can limit the amount of spousal support that one spouse will have to
    pay the other upon divorce.
  • A premarital agreement can protect the financial interests of older persons, persons who are
    entering into second or subsequent marriages, and persons with substantial wealth.

Reasons Against a Pre-nuptial Agreement

  • The agreement may require you to give up your right to inherit from your spouse’s estate
    when he or she dies. Under the law, you are entitled to a portion of the estate even if your
    spouse does not include such a provision in his or her will.
  • If you contribute to the continuing success and growth of your spouse’s business or
    professional practice by entertaining clients and taking care of the home, etc., thus allowing
    him or her to focus on professional endeavors, you may not be entitled to claim a share of
    the increase in value if you agree otherwise in a premarital agreement.
  • It can be difficult to project into the future about how potential issues should be handled,
    and what may seem like an inconsequential compromise in the romantic premarital period
    may seem more monumental and burdensome in reality.
  • A low- or non-wage-earning spouse may not be able to sustain the lifestyle to which he or
    she has become accustomed during the marriage if the agreement substantially limits the
    amount of spousal support to which that spouse is entitled.
  • In the “honeymoon” stage of a relationship, one spouse may agree to terms that are not in
    his or her best interests because he or she is “too in love” to be concerned about the financial
    aspects and can’t imagine the union coming to an untimely end.
  • Starting a relationship with a contract that sets forth the particulars of what will happen upon
    death or divorce can engender a sense of lack of trust.
  • The biggest negative is that a prenuptial agreement can take the wind out of your emotional
    sails.

Post-nuptial

There is a growing trend for post nuptial agreements. Like the pre-nuptial agreement, the post-nuptial agreement sets out the parties’ rights, obligations and liabilities upon the termination of marriage by either death or divorce. The only difference between the two marital agreements is that the post-nuptial agreement is executed sometime after the parties are wed.

Post-nups are particularly popular in the hedge fund industry. The financial tycoons may be seeking to limit their downside risk in the event that their marriages become, to use the street slang, “bearish” (or in the event they want to seek other opportunities.)

Some hedge funds require new partners to have a marital agreement in which the partner’s spouse waives his/her claims against the fund. The hedge fund firms are looking to protect themselves since the partnership interests could be marital assets and, therefore, subject to equitable distribution. In order to ascertain the value of the partnership interest, the partnership needs to be valued opening the door to an inspection of the hedge funds books and records.

So why would a spouse waive his or her claim against partnership interest in the hedge fund? The spouse is probably banking that the marriage will continue and he/she will continue to enjoy the lifestyle afforded by interest in the hedge fund. But, in the event the marriage ends in divorce, the consideration for the waiver could be a generous distributive award.

Separation Agreement

New York Separation Agreement is a contract between spouses that addresses all of the issues necessary to dissolve the marriage. The agreement will address the issues of maintenance (alimony or spousal support), child custody, visitation, child support, and the division of the martial property. The agreement is an enforceable contract and may incorporated in the judgment of divorce.

The separation agreement can also serve as a basis for a divorce one year after the date of the agreement. All that must be alleged and proven is that the agreement was duly executed and acknowledged; that the spouses have in fact lived apart during the period of the agreement up to the time of the divorce action; and that the Plaintiff has substantially complied with the terms of the separation agreement.

The separation agreement, like all marital agreements, must be executed with certain degree of formality, the absence of which will be fatal to the validity of the agreement .